Rants about whatever I am agitated enough to write. Usually related to civil liberties, religion or IT.

Wednesday, August 10, 2011

A Comparison of the Engineers and Workchoices Cases

An essay from my study of constitutional law. I crammed the whole thing into a weekend, but it got pretty decent marks, and I managed to load it up with plenty of opinion, around the need to write down constitutional protections against government expansion of power and reduction of civil liberties, rather than relying on implied rights, which are doomed.

Other than converting it from a .docx into .html, it's as-is, including the poor-quality conversion itself. I probably should have cleaned it up according to the lecturer's comments, but meh. Anyway, here it is...

Critically compare and analyse the development and limits to the Australian Constitution by the High Court in its decision in Amalgamated Society of Engineers v Adelaide Steamship Co (“Engineers case”) (1920) and New South Wales v Commonwealth (“Workchoices case”) (2006).

Introduction

Australia’s Constitution[1] has followed a path that in hindsight seems easy to predict. The Engineers’
Case[2] and the WorkChoices Case[3] are merely two prominent markers along a path that is far from finished. Griffiths, Barton and O’Connor were Australia’s first and only gate-keepers in a struggle that by their own, earlier hands was sure to be lost. These three initial High Court judges were heavily involved in drafting Australia’s Constitution. They had a vision of states retaining their existing powers and the Commonwealth exercising power in an explicitly enumerated set of areas, in an implicitly limited way. Unfortunately for their vision, they left too much to implication, and as such, when the gate-keepers finished up on the High Court, the gates were left open.

This essay will first deal with what the reserved powers doctrine was and why it was considered correct in its time. It will then go on to discuss the effect on the doctrine of first the Engineers’ Case, which under the guidance of Isaacs and Higgins first did away with the doctrine, and then with the WorkChoices Case, which closed any loopholes through which its principles could have been resurrected.

Reserved Powers Doctrine

The drafters of the Australian Constitution saw the Commonwealth as being constituted primarily for the purposes of defence, trade, communications, external affairs and intellectual property.[4] The constitutional powers granted were implicitly meant to be subservient to the powers of the states, unless explicitly excepted. “The Commonwealth was, in other words, a creature of the Constitution, and its powers were strictly enumerated and limited.”[5] In the majority decision of Barger, Griffiths CJ, Barton and O’Connor JJ wrote that:

When it was intended to allow the Parliament to regulate the domestic affairs of the States, the power was conferred by express words… We are thus led to the conclusion that the power of taxation … was intended to be something entirely distinct from a power to directly regulate the domestic affairs of the States, which was denied to the Parliament.[6]

This is the reserved powers doctrine, i.e. that powers not explicitly granted to the Commonwealth at the expense of the States would be reserved for the States to exercise as they saw fit. The reason for the early High Court’s interpretation of the Constitution being consistent with that of the drafters is due to the above-quoted judges being heavily involved in the drafting process themselves.

The early cases that were decided on the basis of their being a reserved powers doctrine were heavily criticised in later cases due to the apparent inconsistencies with how rules were applied.[7] These criticisms stemmed from a desire to read the constitution according to the natural, plain meaning of the words contained within. Isaacs J, for example, when looking for the constitutional limitations that were apparent to the majority in Barger, said “We search in vain for any declaration that the grant of power is subject to the powers reserved.”[8] He knew the words themselves would not be found, considering the majority made their decision based on what they had intended to be implications. This lead to the inevitable result of the Engineers’ Case, on which Isaacs and Higgins JJ gave judgement after Griffith, Barton and O’Connor had left the High Court. This was despite the clearly more complex intent written into the constitution by its authors, and read into it by those same authors when they sat on the High Court.

The Engineers’ Case

The Engineers’ Case concerned an industrial dispute between various unionist organisations and a multitude of employers, some of whom were instruments of state governments, most notably that of Western Australia. The industrial dispute itself is not important to the principles regarding the reserved powers doctrine that were debated and decided in the case.

The dispute that the High Court had to decide upon was whether or not the federal arbitration court could have jurisdiction to hear a case in which a State was a party. The reserved powers doctrine held that unless the States were specifically listed as being subject to powers granted to the Commonwealth, then it should be presumed that the power did not apply to the States, rather than reading the words literally.[9] This would have meant the arbitration power under s51(xxxv) could not apply to the States, as they are not specifically mentioned.

The High Court held that this interpretation was incorrect. They agreed that legislation can only be made if the power is granted by the Constitution to the parliament, and there are no relevant restrictions, but they said that power-granting provisions should be read broadly, so that unless the States are specifically exempted from being under a head of power, or there is some logically necessary exemption, then they are subject to legislation made under that head.[10]

The High Court used the plain language of s109 to reach the conclusion that “mutual supremacy is a contradiction of terms.”[11] They held that the Commonwealth Constitution itself trumps the State Constitutions where inconsistencies exist. “Griffith CJ, Barton and O’Connor JJ [understood] that each head of power served not only to define the powers of the Commonwealth but also to mark out that which was not granted and was therefore to be reserved to the states,”[12] but they were no longer serving on the High Court to make this the dominant position. It was inevitable that the Constitution would eventually be read in this way. Isaacs and Higgins were at this point the longest-serving members of the High Court. They had shown strong preferences in the past for reading of the Constitution according to its natural meaning, so the result was predictable. They, with all other judges except Gavan Duffy J, overturned all previous cases where the doctrine of “implied prohibition” was invoked to reach a decision.[13]

The WorkChoices Case

The WorkChoices Case disputed the ability of the government to introduce the WorkChoices Act,[14] which rewrote the Workplace Relations Act.[15] The latter had relied mostly on the arbitration power,[16] whereas the former used the corporations power to introduce a federal system of industrial relations law that went far beyond the scope of arbitration and into employment standards to a degree that, among other effects, weakened the unions’ ability to negotiate for employees.

The majority of the court held that it was a valid for the Commonwealth to sneak in laws about industrial relations under the s51(xx) head of power relating to foreign corporations and domestic trading and finance corporations.[17] The trickery of the WorkChoices Act was in putting together a patchwork of several types of organisations, about which the federal government is allowed to legislate, under the one banner. This was done by the definition of an employee as not only those working for corporations defined under s51(xx), but also for any organisation formed within a territory, Commonwealth organisations and even organisations involved in trade or commerce where there is a connection to shipping, whether by air or by sea.[18] It is understood that “the WorkChoices Act would not have been held valid under the corporations power in the early years of the federation… The corporations power was intended to serve a fairly limited role”[19] and it is only through post-Engineers plain reading and some creativity that the WorkChoices Act could be upheld.

The ability for this law to be passed, and upheld by the High Court, shows the departure from the times of Barger, when it was considered that:

… labour is a matter relating to the internal affairs of the States, and is therefore reserved to the States and denied to the Commonwealth, except so far as it can be brought within one of the thirty-nine powers enumerated in s 51.[20]

The changes that took place post-Engineers clearly change the presumption from being that states are autonomous, subject to specific grants of power to the Commonwealth, to the states being subservient, subject to express limitations on the Commonwealth.

This majority decision expressly disapproved of every argument that tried to invalidate the legislation by way of reference to the context in which the constitution should be read.

The majority thus upheld the entirety of the Work Choices Act, principally on the basis … that the corporations power extends to any law which alters the rights, powers or duties of a constitutional corporation, as well as to laws which have a less direct but nonetheless sufficiently substantial connection to constitutional corporations.[21]

The separate, dissenting judgements, by Kirby and Callinan JJ, however, focused on issues of context, while avoiding using the language of the reserved powers doctrine.

The crucial strategic question was whether to challenge those conventions head-on through an openly acknowledged resuscitation of the reserved powers doctrine, or whether to try and show that the Work Choices Act could not be supported by the corporations power when that power was read according to orthodox methods of interpretation.[22]

Kirby J, for example, noted that s51(xxxv) exists for the purpose of preventing and resolving industrial disputes, so to subsume this power into s51(xx) would be to read the constitution in a way that negates the need for s51(xxxv),[23] which is contrary to standard legislative interpretation practices, where every word is included for a reason. This brings up the object of command test,[24] where if this broad form of interpretation is allowed, almost unrestricted legislation could be made with regard to “employment, defamation, negligence, contracts, succession, trusts and crime,”[25] to name a few, where at least one constitutional corporation is involved.

Callinan J dissented on context-based grounds as well, where his objections include an historical look at the fact that “the people have too often rejected an extension of power to do what the Act seeks to do.”[26] He also dissented based on the decisiveness and totality of the language used in s51(xxxv), which he stated implied a restriction on any legislation around industrial disputes based on any other head of power, except in some limited exceptional cases.[27] He even used the term “restrictive implication,”[28] which seems synonymous with “implied prohibition,” to refer to what he saw as the effect of s51(xxxv) on the other parts of s51.

Conclusion

While Griffith may have said that “we have become practically almost sovereign states, a great deal more sovereign states, though not in name, than the separate states of America,”[29] and the other drafters of the constitution might have intended for a United States approach to federation, they failed to include in the Australian Constitution anything like the 10th amendment to the U.S. constitution.[30] Even in the U.S., it was added despite several of the key drafters believing that the rights were already implicitly reserved for the people and the states.[31] Australia is an example of what would have happened to the U.S. had the 10th amendment been left out. If there are no explicit rules to follow, a government will take more power whenever possible. Depending on the constitution of the court that interprets each grab for power, they will sometimes succeed. This trend is even taking place in the E.U., where sovereignty is gradually flowing from member “states”, to the E.U. parliament.[32]

The overall outcome of the Work Choices Case is that the federal government is effectively unlimited in the breadth and depth for which it can legislate, because with such broad interpretations of grants of power, and such narrow interpretations on limitations of power, there will always be a way for an intelligent government to word legislation to sneak in under some heads of power.

The decline of the reserved powers doctrine served the unintentional purpose of allowing for a smooth transition from individual colonies to individual states, and eventually to a single nation with a centralised government. The result of the transitioning interpretation of the federal government’s legislative jurisdiction has allowed for a situation where states have weakened at a rate that, despite its accidental nature, has made the kind of sense that could almost have been planned from the outset.

To have initially forgone a federal system in a massive, sparsely-populated country in a time when communication was slow, and states had distinct identities, other than in relation to sport and jokes about Tasmania as is the case today, would never have worked effectively. So the erosion over time to a national approach to government has been a generally positive result with few shocks, when looked at from the perspective of administrative workability, rather than identity-driven sovereignty. After all, to the general public, Work Choices was bad law due to its content, rather than its jurisdiction. As already stated, the decisions in Engineers and WorkChoices were inevitable given hindsight. However, this does leave a certain amount of room to recognise the trend and make predictions for the future.

Trends towards calling everything terrorism will lead to civil liberties, over which the states currently have dominion, gradually falling under the control of the federal parliament through the defence power. What will be lost in this transition is the ability to pick up and move to a different state when one state reaches a point where its laws are personally intolerable. One government centrally controlling the passage of legislation means that good laws can quickly apply to everyone, but so can bad laws.

Bibliography

Books and Journals

N. Aroney, Constitutional Choices in the Work Choices Case, or What Exactly is Wrong with the Reserved Powers Doctrine? (2008) 32 Melbourne University Law Review 1

D. Barnett, The Corporations Power and Federalism: Key Aspects of the Constitutional Validity of the Work Choices Act, (2006) 29(1) University of New South Wales Law Journal 91